The All-Important “Automatic Stay”

The “automatic stay” goes into effect the moment your bankruptcy case is filed. It is a provision in the bankruptcy law which stops virtually all efforts by your creditors to chase you or your property at the moment of filing. “Stay” is the legal word for “stop.” It is “automatic” because the very act of filing your case “operates as a stay” against the creditors’ actions. ( Section 362(a)(1) of the U.S. Bankruptcy Code.) No other court action is needed.

Its Coverage is Expansive

The automatic stay gives you an immediate break, protecting you and your assets from your creditors in almost every possible way. The automatic stay stops all phone calls and letters from the creditors, their garnishments and lawsuits—“any act to collect, assess, or recover” a debt. . ( Section 362(a)(2)-(6) .) The automatic stay also stops vehicle repossessions and home foreclosures, prevents the IRS from recording a tax lien, and avoids creditors from suing you to get a judgment and judgment lien.

Immediate

The automatic stay works more quickly and efficiently than just about any legal procedure. Although it behaves like a court injunction, it does not involve a judge. It is like a one-sided and immediate court order, put into place simply by the filing of your bankruptcy case. You get an immediate breathing spell, no matter whether your creditors like it or not.

Motions for “Relief from the Automatic Stay”

However, a creditor can object to and try to undo the automatic stay quite quickly by filing a motion for relief from the automatic stay. In this motion the creditor asks the bankruptcy judge for permission to again be able to pursue you or your property. These motions are most commonly filed by secured creditors wanting to get back their right to pursue the collateral securing the debt—for example, to repossess a vehicle or foreclose on a house. Whether or not a creditor’s motion for relief is granted by the judge depends on a series of conditions such as the status of your payments on the debt, your intent about making future payments, your ability to fulfill those intentions, and the value of the collateral compared to the amount of the debt. ( Section 362(d)-(g) .)

The automatic stay is one of the most powerful benefits of bankruptcy. I would be happy to review your situation with you and describe how it could help you. I provide a free initial consultation to anyone with questions or concerns about filing bankruptcy. Please reach me, Carrie Weir, at my office by using the contact form here or by calling me at 972-772-3083 to arrange a private meeting. From my office in Rockwall, Texas, I represent clients in Heath, Greenville, Lavon, Wylie, Mesquite, Rowlett, and the surrounding areas.